Washington University Journal of Law & Policy
Volume 4 Access to Justice: The Social Responsibility of Lawyers
January 2000
The United States at the End of the “American
Century”: The Rule of Law or Enlightened
Absolutism?
Gerhard Casper
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The United States at the End of the “American
Century”: The Rule of Law or Enlightened
Absolutism?*
Gerhard Casper
I
My former colleague and friend, the late Edward Shils, once
wrote that he never wanted to be against his fellow countrymen or to
be a Cassandra—it was much too easy to make dark prophecies.1
However, he went on to say that his outlook on society became more
somber over time.2 It is much too easy to make dark prophecies,
indeed. I emigrated to the United States in 1964. Over these decades
our country, in a myriad of ways, has become a better place than it
was at that time. However, today is not the Fourth of July and we,
especially the lawyers among us, have many reasons to be somber. I
would like to talk about a few of them. I shall do this because there
are grounds aplenty to attempt to do better.
Let me begin by defining the four reference points of the question
that is my title—“The United States at the End of the ‘American
Century’: The Rule of Law or Enlightened Absolutism?” First, a few
observations about “the United States.” While today is not the Fourth
of July, it is nevertheless appropriate to invoke Abraham Lincoln’s
explication of the meaning of Independence Day when referring to
the United States. In 1858, in his senatorial campaign against Stephen
A. Douglas, Lincoln estimated that about half of the United States
population had its origins not in Great Britain, but rather that they or
their ancestors came from “Europe”—he referred to the Germans,
* President and Professor of Law, Stanford University. The following Article is based
on a presentation delivered by President Casper in the Public Interest Law Speakers Series as
the Tyrrell Williams Lecture at Washington University School of Law on January 31, 2000. A
slightly different version of this lecture was delivered at the University of San Diego in 1999.
1. EDWARD SHILS, T HE VIRTUE OF CIVILITY 21 (Steven Grosby ed., 1997).
2. Id.
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Irish, French, and Scandinavians.3 To “loud and long continued
applause” he stated that the Declaration of Independence and its selfevident truth of equal creation gave them “a right to claim it as
though they were blood of the blood, and flesh of the flesh of the men
who wrote that Declaration.”4
Earlier, Lincoln referred to the fact that the United States had
become “a mighty nation” with a population of about thirty million. 5
Less than a century and a half later, the head count is 274 million.
Twenty-four percent of the present population of California is
foreign-born. 6 If we add to that percentage those born in the United
States to immigrant mothers, one-third of the state’s population has
intimate links to other countries and cultures.7 Since I moved to the
United States from Germany thirty-six years ago, profound political
changes have taken place. One might say that, over these decades, the
hegemony of White Anglo-Saxon Protestantism has almost
disappeared. I remind you that as recently as the election campaign of
1960, the fact that John F. Kennedy was a Roman Catholic was a
matter of considerable controversy—something that is much harder
to imagine today.
There can be little doubt that the country’s culture has become
more diverse and, in some areas, more contentious, even as the great
legal documents of 1776 and 1787 remain the common denominator
that makes us one society. It is a cliché that the United States is a
young country. A few years ago, my former teacher, Charles Black of
the Yale Law School, pointed out that just three human lives, not
phenomenally long, can more or less cover the period from the
Revolution to the present day. He chose the slightly overlapping lives
of three former presidents: James Madison, Benjamin Harrison, and
Dwight Eisenhower.8 While obviously you could make a similar
calculation for any country, there is no country in the world, and I
3. Abraham Lincoln, Speech at Chicago, Illinois, in SPEECHES AND W RITINGS: 18321858 (1989).
4. Id. at 456.
5. Id.
6. Ramon G. McLeod, Immigration Top Factor in ‘90s Growth , S.F. CHRON ., Jan. 9,
1999, at A2.
7. Id.
8. Charles L. Black, Jr., And Our Posterity, 102 YALE L.J. 1527, 1527 (1993).
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include Britain in this comparison, where those three lives would
cover as much apparent constitutional and institutional continuity.
By contrast, for instance with France and Germany, our 213 years
of the world’s oldest written constitution represent an extraordinary
constitutionalist accomplishment. Furthermore, can you name any
other society where politicians of the late eighteenth century daily are
looked to for guidance on present-day political issues? As I make
these claims of continuity, it goes without saying that there also have
been profound constitutional discontinuities, adaptations and
changes. Indeed, many of the legal disputes of recent decades are due
to our efforts to deal with the tensions of a large, multi-racial, multiethnic society within an eighteenth century republican, democratic,
federal constitutional structure that, but for the Civil War
Amendments, remains formally unchanged.
My second reference point, the “end of the American century,”
obviously is my escape from the ceaseless talk about the twenty-first
century, the bridge thereto, and the never-ending invocations of the
third millennium. I chose the end of the present century (I count the
year 2000 as its last year) because we can actually make verifiable
statements about it.
The British historian Eric Hobsbawm has called his book on the
twentieth century The Age of Extremes.9 He also considers the
twentieth century the “short” century and dates it from 1914 to
1991. 10 Centuries and millennia are, of course, wholly arbitrary
fictions of calendar makers and the fin de siècle is as unreal as the
notion that we need a “bridge” to the twenty-first century. Having
said that, it is convenient to divide up the past. Politically, this has
been the century of the first World War, the Russian Revolution, the
Stalinist evils, the horrors perpetrated by Nazi Germany and the
second World War that was followed by the third, “cold” world war.
The second half of this century saw decolonization, Mao and the
emergence of the People’s Republic of China as a major player, as
well as the increasing significance of the global economy with Japan
and other Asian countries playing key roles. In the second half of the
9. E.J. HOBSBAWM, T HE AGE OF EXTREMES: T HE SHORT TWENTIETHCENTURY 1914-91
(1994).
10. Id.
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twentieth century, Western European nations joined together in ways
that are breathtaking if seen against the history of the outgoing
millennium. Finally, the Soviet Union and its dominance over Central
and Eastern Europe fell with the Berlin Wall.
During all of this, the United States increased its power and
influence while also undergoing significant internal evolutions, most
importantly the extension of civil rights protection. The United States
saw many aspects of the “American way of life,” both cultural and
material, embraced abroad. To a large extent, the twentieth century
has been the “American century.” Our economic system has served,
and continues to serve, as a model even if its adoption is often highly
qualified. We can now see what only twenty years ago would have
been less clear: The most influential economist of the century has
probably been the American Milton Friedman.
I am not an economist by profession, but a lawyer. How satisfied
should we be with the accomplishments of our legal system? Is the
United States’ legal system something we should want to export?
Thus, I now turn to the third component of my title, “the rule of law.”
In the United States, that concept has been primarily the domain
of bar associations and political rhetoric. It rarely is invoked by
courts as a rule of decision. At present, the rule of law is often
bandied about as identifying what is missing in many countries, such
as China, without anybody bothering much about institutional details.
The concept of the rule of law has venerable origins and, as far as
Anglo-American legal traditions are concerned, it gained lasting
prominence in the Magna Carta. In the American context, Thomas
Paine contrasted it succinctly with absolutism. In America, he wrote,
the law is king. 11 “For as in absolute Governments the King is Law,
so in free countries the Law ought to be King; and there ought to be
no other.”12
But what is the substance of this rule of law? A complicated
question since the concept seems to be a fairly empty vessel whose
contents, depending on the speaker, can differ even more than the
various approaches to constitutional interpretation. However, I think
11. Thomas Paine, Common Sense, in 1 T HE P OLITICAL ANDMISCELLANEOUS WORKSOF
T HOMAS P AINE 32 (1819).
12. Id.
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the rule of law can be understood as including, at a minimum, the
requirement of a clear basis in law for the exercise of public
authority, the protection of individual rights, including safeguards
against the abuse of power, an independent judiciary and equality
before the law. Of course, none of these components is self-defining,
but they can serve as reference points.
Finally, in the fourth part of my title, what do I mean by
“enlightened absolutism?” Instead of an abstract definition, let me
invoke the late eighteenth century example of the General Code for
the Prussian States, a product of the enlightened absolutism of
Frederick II who desired a natural law, reason-based codification
administered by a civil service so that the messy phenomena of life
could be made to fit the Code.13 The final result was a comprehensive
effort to clearly define the subject’s rights (and, of course,
obligations) in all stations of life, public and private, from the cradle
to the grave.
The Prussian Code included a title headed “of the rights and
Duties of the State in general.”14 It postulated that these rights and
duties were united in the monarch, who maintained external and
internal peace and security, but who also protected the individual in
“his own.”15 It was the state’s task to provide the inhabitants with the
means and opportunity to develop their abilities and strengths so that
they might apply those skills to further their fortunes. This potentially
far-reaching conception of the state led to the creation of a cadre of
administrators subject to “general norms and prescribed procedures
and committed to impersonal efficiency.”16
The Prussian Code contained the astounding number of over
17,000 articles covering public and private law. Frederick himself
thought it was much too long. It contained, of course, provisions
about marriage and even detailed when partners were excused from
the performance of their marital duties (for instance, when away on
13. MACK W ALKER, GERMAN HOME T OWNS: COMMUNITY , STATE , AND GENERAL
ESTATE 1648-1871, 160 (1971).
14. ALLGEMEINES LANDRECHT FÜR DIE P REUßISCHEN STAATEN VON 1794 (Dr. Hans
Hattenhauer ed., 1970) [hereinafter P RUSSIAN CODE ].
15. Eg., id.
16. HANS ROSENBERG , BUREAUCRACY , ARISTOCRACY , AND AUTOCRACY : THE
P RUSSIAN EXPERIENCE 1660-1815, 48 (1966).
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government business). Even more comprehensive detail could be
found in the 104 provisions dealing with the legal consequences of
extra-marital intercourse, and others that dealt with sexual
harassment of household employees. The Prussian Code was
draconian in dealing with malfeasance in office, prescribing, for
example, removal from office and two to five years of incarceration
for judicial officers who, in violating their duties, were motivated by
“animosity, private passions or other ulterior purposes.”17
The comprehensiveness of this regulatory effort should not seem
overly foreign to us, for the Prussian Code does find a counterpart in
the American legal system at fin de siècle, as we, too, try to make the
messy phenomena of life fit the law. Indeed, Prussia pales by
comparison when it comes to the all-encompassing breadth and depth
that reaches the picayune; and it keeps getting worse. The Federal
Register, a daily report of new and proposed regulations, increased
from 15,000 pages in the final year of John F. Kennedy’s presidency
to over 72,000 pages in 1998. 18 That is about 200 pages a day,
including weekends.
Beginning with President Carter and continuing with Presidents
Reagan, Bush, and Clinton, winning presidential candidates have run
on platforms complaining about big government and have been
ostensibly committed to deregulation. The results are mostly pitiful.
Furthermore, the Prussian Code had one advantage over any laws and
regulations passed in the United States in the last few decades: The
language in which it was written had an immediate, vivid quality and
resembled daily life. What our system produces is mostly
incomprehensible to everyone, including lawyers.
I am going to spare you a litany of contemporary regulatory
excesses and absurdities. Philip K. Howard did a good job of that in
his 1994 book The Death of Common Sense—How Law is Suffocating
America.19 I will, however, give you just two up-to-date illustrations
of latter day enlightened absolutism. The City of San Francisco, one
17. P RUSSIAN CODE , supra note 14.
18. See P HILIP K. HOWARD , T HE DEATH OF COMMON SENSE 25 (1994). See, e.g., Agency
Responsibilities, Organization, and Terminology for the Department of Agriculture, 63 Fed.
Reg. 72,352 (1998).
19. HOWARD , supra note 18.
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of the American jurisdictions that think of themselves as enlightened,
has required private contractors doing business with the city to
disclose the distribution of sexual preferences among its employees.20
Health Commission Policy number twenty-four stated, in captivating
English, that a “contractor’s ethnicity, gender identification, and
sexual orientation composition is to be representative of the clients
served.”21 The commission canceled a contract with the Catholic
Youth Organization, which ran mental health services for troubled
children, because the group would not comply with the disclosure
policy.22 This is an example of enlightened absolutism because of its
intrusiveness and mindless overreach in the service of a cause. After
the archdiocese threatened legal action, the disclosure provision was
replaced with one requiring “compliance with anti-discrimination
protections” and—run for cover—“cultural competence.”23
The second example is the Department of Labor’s recent
breathtaking proposal to extend the reach of workplace health and
safety regulations into the homes of telecommuters. The
Occupational Safety and Health Administration (OSHA) had not
received a single complaint from home office workers at the time it
posted its advisory letter, which has since been withdrawn. We are
now going to have a “national dialogue” on the matter.24 The
dialogue will undoubtedly be followed by some form of government
regulation. In the interest of comprehensiveness we regulate even if
there is no discernible problem or if the costs to other important
values outweigh the regulatory gain. The great twentieth century
writer Robert Musil once said: “Ideals have curious properties, and
one of them is that they turn into their opposites when one tries to
live up to them.”25
20. Sabin Russell, S.F. Braces for Possible Lawsuit by Archdiocese, S.F. CHRON., Jan. 13,
1999, at A17.
21. Id.
22. Id.
23. HEALTH COMMISSION, CITY AND COUNTY OF SAN FRANCISCO , RES. 9-99, AMENDING
THE DEPARTMENT OF P UBLIC HEALTH ’ S P OLICY DIRECTIVE #24, E THNICITY ANDGENDER OF
STAFF AND BOARD OF DIRECTORS; AND RENAMING THE P OLICY TO : CONTRACTORS’
COMPLIANCE WITH ANTIDISCRIMINATION P ROTECTIONS AND CULTURALCOMPETENCY (1999).
24. Sarah Lueck, Home Workers Didn’t File Any OSHA Protests, W ALL ST. J., Jan. 10,
2000, at A6.
25. ROBERT MUSIL, T HE MAN W ITHOUT QUALITIES 247 (Eithne Wilkins & Ernst Kaiser,
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Both episodes illustrate that in the pursuit of “enlightened”
policies, government does not hesitate to invade the private sphere,
including, in the San Francisco case, privacy of information and
associational and religious freedoms. Can a society that
systematically obliterates the distinction between the public and the
private realms be free and civilized in the long run? The fact that
there is much sin does not necessarily mean that we can afford to
eradicate all of it without turning law enforcement into something
both oppressive and trivial. Government, the media, other powerful
commercial interests, the high-tech revolution and many ordinary
people pay scant attention to the fact that the refusal to recognize any
line between the public and the private makes all human relations and
preferences subject to discovery in both the ordinary and legal
meanings of the word, thus chilling the very privacy and personal
autonomy that is one of the great accomplishments and results of
modernity, especially in its American version.
The pursuit of greater comprehensiveness (itself resulting from
the “necessity” to deal with lacunae, the number of which increases
exponentially with regulatory growth) also tends to create a maze in
which one can all too easily run afoul of the law that is king. The
greater the maze, the greater the potential that government officials
implementing syllogistic interpretations of the mandates of
enlightened government will end up despotic. James Madison
foresaw this danger, believing that “there are more instances of the
abridgement of the freedom of the people by gradual and silent
encroachments of those in power, than by violent and sudden
usurpations.”26 Surely one of the most astounding recent news items
was the effort of the Secretary of Health and Human Services, the
Attorney General and the FBI Director to mobilize the elderly to
scrutinize their doctors’ bills for fraud. 27 The United States’
trans., Coward-McCann 1953).
26. J. Madison, The Debates in the Convention of the Commonwealth of Virginia on
Adoption of the Federal Constitution (June 6, 1788), reprinted in 3 J. ELLIOT, THE DEBATES IN
THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION 87
(1836) (Elliot erroneously lists the date of Madison’s address as June 16, 1788).
27. See Robert Pear, U.S. Is Asking for Patients’ Help In Fight Against Medicare Fraud,
N.Y. TIMES, Feb. 21, 1999, at A1; Nancy W. Dickey, Government to Grandpa: Rat Out Your
Doctor, W ALL ST. J., Feb. 24, 1999, at A18.
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government organizes patients, campaign-style, to inform on their
doctors. I certainly hope that the deputized seniors will succeed in
figuring out the Medicare regulations.
II
How is our legal system coping with the tasks of law enforcement
in battling the “wars” on various evils that our society has ordained at
all levels of government: local, regional, state, and federal?
In what follows, I shall not address tall and large “Rawlsian”
issues. My question today is not what constitutes a just society, but a
much more limited examination of some aspects of our performance
as a legal system, or the rule of law, in a narrower sense. Even so, I
will choose just a few illustrations from a few areas of the law, some
ordinary and some remote, to make a larger point: that our
performance is often mindless and frequently disproportionate and at
times, even cruel. Achievements in our legal system are no excuse for
our considerable shortcomings. My primary point is not that “law
suffocates America” (although, it does), but that our performance,
under the rule of law, is often lacking. Our performance too often
displays an insufficient exercise of discretion on the part of
government actors, and an insufficient examination of the overall
balance of the costs and benefits entailed in governmental decisions.
My examples will illustrate what can happen to ordinary people and
ordinary institutions.
The first example is taken from a column by Bob Herbert of The
New York Times.28 It is the story of Ellis Elliot, whose apartment the
New York police mistakenly invaded and wrecked in search of a drug
dealer. There was shooting from both sides.29 Before the mistake was
realized, he was dragged naked into a fourth-floor hallway and his
hands were cuffed behind his back. 30 He was repeatedly addressed as
“nigger” and “black mother-so-and-so.”31 When he begged for
clothes, the police first said that, as a mere animal, he did not deserve
28.
29.
30.
31.
Bob Herbert, In America: Day of Humiliation, N.Y. T IMES, Mar. 8, 1998, at 17.
Id.
Id.
Id.
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any and then, finally, gave him some of his girlfriend’s clothes to
wear.32 Dressed in women’s clothing, he was taken out on the street
in front of a crowd of onlookers.33 At the precinct station, Mr. Elliot’s
humiliation continued. He was put in a cell and left for several hours,
in women’s clothing, and with wrists cuffed behind his back for part
of the time.34 At about 1:00 a.m. the following day when the
investigators learned of their mistake, they released him. 35 Later, Mr.
Elliot returned to his apartment only to find police officers lounging
in his living room, eating snacks and watching television. 36 Amused,
one of them suggested that Mr. Elliot find a good lawyer and “sue the
hell out of them.”37 Is this what we mean by the rule of law? Is this
what the war on drugs justifies?
My illustration is not the worst that I could have chosen: Ellis
Elliot is alive. In the fiscal year of 1998, 2,266 claims of police
misconduct were filed in New York City,38 continuing disturbing
trends that led Amnesty International to call for an independent
inquiry of New York police practices in 1997. 39 Unfortunately, New
York City is not alone. It was only nine years ago that the entire
world was treated to the video of police violence against Rodney
King in Los Angeles.40
Decades ago, Nat Nathanson invoked the adage that the sternest
test of a civilization is provided by the humaneness of its criminal
process.41 Since the days of the ancient Greeks, a civilization also has
been measured by the way in which it deals with foreigners. In
dispiriting columns over the last three years, Anthony Lewis of The
New York Times told a number of stories emanating from the
Immigration and Naturalization Service’s implementation of the
32. Id.
33. Herbert, supra note 28.
34. Id.
35. Id.
36. Id.
37. Id.
38. Joel Berger, The Police Misconduct We Never See, N.Y. T IMES, Feb. 9, 1999, at A1.
39. AMNESTY I NTERNATIONAL, REPORT 1997 (1997).
40. See JEWELLE T AYLOR GIBBS, RACE AND JUSTICE : RODNEY KING AND O.J. SIMPSON
IN A HOUSE DIVIDED (1996).
41. Nathaniel L. Nathanson, 64 CRIMINAL LAW & CRIMINOLOGY 130, 131 (1973)
(reviewing LOIS FORER, NO ONE W ILL LISSEN: HOW OUR LEGAL SYSTEM BRUTALIZES THE
YOUTHFUL P OOR (1970)).
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Illegal Immigration Reform and Immigrant Responsibility Act of
1996. 42 The Act was signed by the president and enforced by the
executive branch with mindlessness and cruelty. Some of the
detention centers and jails used by the INS to hold detainees before
deportation are so overcrowded that conditions have led to hunger
strikes.43 The following stories, told by Anthony Lewis, do not
involve criminals, or even suspects, but rather people like you and
me.
John Psaropulous, a British subject and a native of Greece, was a
television journalist working for CNN. He returned from Athens to
Atlanta after a vacation. At the airport, he was told that he was
ineligible to enter because his work visa had expired and the INS had
not yet acted on CNN’s application for extension. 44 Let in
provisionally, Mr. Psaropulous was eventually arrested, detained,
and, using the so-called “expedited removal” of aliens procedure, put
on a plane to Athens with a five-year-ban on returning to the United
States.45 After things had cleared up, he was issued a new visa by our
embassy in Athens, and, once again, he arrived in Atlanta and was
forced back to Greece.46 Authorities then reversed themselves yet
again and issued Mr. Psaropulous another visa.47 However, “the real
wrongs” in Mr. Psaropulous’s story are not over: “the wrong of
vesting in INS bureaucrats unreviewable power to destroy people’s
lives; the wrong of bureaucrats using their power to punish someone
because his employer didn’t file a piece of paper; the wrong of
making people subject to a five-year ban from this country because of
an innocent mistake.”48 Is this what we mean by the rule of law? I do
understand, of course, that it is easy for immigration officials to
become desensitized when for every incident like this there are
hundreds that involve convicted felons returning again and again.
42. 8 U.S.C. § 1221, et seq. (2000).
43. Jailed Migrants Hold Hunger Strike, SAN DIEGO UNION & T RIB., Nov. 24, 1998, at
A3; Andrew Blankstein, Detention Center Locked Down, Hunger Strikers Ill, L.A. TIMES, Nov.
23, 1998, at B2.
44. Anthony Lewis, Abroad at Home: Is This America?, N.Y. T IMES, Aug. 18, 1997, at
A19.
45. Id.
46. Id.
47. Id.
48. Id.
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In another similar story, Martina Thompson, a German citizen,
married an American and came to the United States on a visitor
visa.49 As the law allows, Ms. Thompson applied for status
adjustment as a permanent resident.50 While her application was
pending, the young couple returned to Germany to visit her parents,
but before doing so asked the New Orleans office of the INS whether
she could leave and then subsequently return. 51 They were wrongly
told that she could. 52 Shortly after her return to New Orleans, Ms.
Thompson was arrested and jailed. 53 She was thrown into one of the
most degraded prisons in the country, New Orleans Parish prison. 54
Moreover, Ms. Thompson was held in jail for eight days and her
husband was not allowed to visit her.55 She was later handcuffed,
taken to the airport, chained to a seat, and flown back to Germany
under guard. 56 More than a year later, the State Department had
refused Ms. Thompson’s application for an immigration visa because,
under the regulations, the State Department required three years of
business tax returns from her husband, who is in the construction
business but had been in business for only eighteen months.57
Fortunately, this story did end happily; after further anguish, the U.S.
Consulate in Frankfurt issued an immigrant visa to Ms. Thompson
last winter.58 She reached her new home in Louisiana some time in
May. 59 Is this the rule of law in all its majesty? Is this what the war
against illegal immigration justifies?
I now turn to territory well familiar to all of you: the investigation
that led to the impeachment of President Clinton. Whether President
Clinton was rightly or wrongly impeached and acquitted is not my
concern. I am concerned with how others were affected by the events
49. Anthony Lewis, Abroad at Home: End of a Dream , N.Y. T IMES, Aug. 29, 1997, at
A23.
50. Id.
51. Id.
52. Id.
53. Id.
54. Lewis, supra note 49.
55. Id.
56. Id.
57. Anthony Lewis, Abroad at Home: The Trial, N.Y. T IMES, Nov. 10, 1998, at A29.
58. E-mail from Anthony Lewis, The New York Times, to Robert Hur, Research Assistant
to President Casper (Oct. 20, 1999) (on file with author).
59. Id.
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that occurred.
A White House intern, Monica Lewinsky, befriends another
government employee, Linda Tripp, to whom she confesses, in a
number of telephone calls, that she is in love with the President and
has had an affair with him. Ms. Tripp taped these telephone
conversations without Ms. Lewinsky’s knowledge. Maryland, where
Ms. Tripp lives, apparently does not permit such tapings.60 Ms. Tripp
has been indicted on two counts of violating Maryland’s wiretapping
law and is scheduled to stand trial in July. 61 Ms. Tripp surrendered
copies of the tapes to the lawyers for Paula Jones, who was suing the
President for sexual harassment. Ms. Tripp also told independent
counsel Kenneth Starr about her tapes. His office then “wired” her for
a four-hour meeting with Lewinsky in a Virginia hotel. Virginia law
apparently permits such wiring. 62
Putting legal issues to one side, we are so ready to shrug our
shoulders that the rankness of all of these events hardly sinks in
anymore. Why should we assume it was acceptable for private
litigators to make use of tapes obtained surreptitiously; to employ an
old metaphor, “fruit of the poisonous tree?” Without more, how can it
be acceptable for a government prosecutor to wire a witness in order
to obtain an extension of his mandate to investigate the President of
the United States? Under the rule of law, as commonly understood in
the United States, all of this seems to pass muster.
In his book on the Lewinsky matter, Judge Posner accurately
states that evidence obtained in violation of state law is not
technically “fruit of the poisonous tree,” and therefore, it is
admissible in federal proceedings.63 He also opines that Starr behaved
in a manner similar to any responsible independent counsel, stating
that “[w]here there is smoke, there is usually fire.”64 I disagree with
Judge Posner’s answer to the question that we so rarely ask these
60. Michael Gaynor, Why They Barred Wiretaps, LEGAL T IMES, Nov. 9, 1998, at 31.
61. Judge Postpones Tripp’s Trial, BALTIMORE SUN , Dec. 24, 1999, at 3B.
62. Daniel H. Pollitt, Essay: Sex in the Oval Office and Cover-Up Under Oath:
Impeachable Offense? 77 N.C.L. REV. 259, 259-60 n.2 (citing MD . CODE ANN., CTS. & JUD.
P ROC. 10-402 (Supp. 1997)); VA . CODE ANN . 19.2-62(B)(2) (Michie 1995) (providing an
exception to wiretapping prohibitions when at least one party consents).
63. RICHARD A. P OSNER, AN AFFAIR OF STATE 61 (1999).
64. Id. at 70.
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days, which is whether certain practices, even if legal, are good
practices in a civilized society.
It is one of the most frequent and greatest conceits encountered in
present-day legal America to assume that if you can do something
you should do it, demonstrating a rather perverse reading of the
understanding that the United States is a land of unlimited
possibilities. We have abdicated the delineation of the law’s impact
on society to the letter of the law and to “anything goes” reasoning by
lawyers about what we can do, foregoing the use of discretion in
determining what we should do. Possibly it is true, as Judge Posner
writes, that if prosecutors were not so aggressive, “our crime rate
would be even higher than it is.”65 However, citizens and
governments must constantly re-evaluate the balance between laxity
and zeal, because the danger of destroying a desirable society exists
at both ends of the spectrum.
Independent counsel staff initially confronted Monica Lewinsky
on January 16, 1998. It seems to be established that they hindered
her, or at least discouraged her, from calling her lawyer, and that they
tried to obtain an immunity agreement by conjuring up the specter of
long jail sentences and threatening to prosecute her mother.66 In fact,
the independent counsel’s office did bring Lewinsky’s mother before
the grand jury, questioning her for over two days. A Time’s article
states that “[t]hough Starr was operating within the law, not many
people have seen up close how rough the law can get when a
determined prosecutor pulls out all the stops.”67 The independent
counsel even subpoenaed records of Lewinsky’s book purchases from
Washington bookstores.68 Starr’s spokesman, Charles Bakaly III, said
of his office’s conduct: “However unpleasant these techniques, they
are part of what federal prosecutors do.”69 Some commentators agree.
Judge Posner believes that Starr used “typical hardball prosecutorial
65. Id.
66. Sam Skolnik, The Year of the Prosecutor, LEGAL T IMES, Dec. 21, 1998, at 8.
67. Richard Lacayo, Turning Up The Heat, T IME , Feb. 23, 1998, at 32.
68. Nick Bravin, Is Morrison v. Olson Still Good Law? The Court’s New Appointments
Clause Jurisprudence, 98 COLUM. L. REV. 1103 (1998); Anthony Lewis, Abroad at Home:
Sense of Proportion, N.Y. T IMES, Apr. 20, 1998, at A19.
69. Skolnik, supra note 66.
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methods”70 that at most could be deemed harmless error.71 Members
of Starr’s office defended their issuance of subpoenas by pointing to
precedents in the investigations of Ted Kaczynski and Timothy
McVeigh: What better example of the lost sense of proportion could
there be than this comparison of the need to discover the reading lists
of mass murders and Monica Lewinsky? 72
If you have done nothing other than be in the wrong place at the
wrong time, these same prosecutors can impose extraordinary
expenses on you. Twenty-nine current and former White House
employees went before the Washington grand jury in the Clinton
investigation, and some have substantial legal bills as a result.73 It is
true that some of these people may have committed felonies, and so,
as Judge Posner writes, “we needn’t wring our hands over their
incurring legal expenses.”74 Moreover, those who were not targets of
the independent counsel’s investigation ostensibly had no reason to
hire lawyers.75 On the other hand, can we truly fault those who were
genuinely frightened and rightfully awed by prosecutorial power and
sought to minimize the risk of inflicting grave damage upon their
reputations and careers?
Independent counsel Donald Smaltz commented about the
acquittal of former Secretary of Agriculture Michael Espy on all
thirty corruption charges after a $17 million dollar, four-year
investigation: “[T]he actual indictment of a public official may in fact
be as great a deterrent as a conviction of that official.”76 Mr. Smaltz is
correct. If a U.S. attorney decided to go after you tomorrow, for
whatever alleged offense, he could impose extraordinary expenses on
you, and if you were acquitted in court, you would still have lost
because the government would not reimburse you for your legal
defense. For that matter, under the American rule, if I was sued
70. P OSNER, supra note 63, at 69. See also Stuart Taylor, Jr., Must a Parent Testify,
NEWSWEEK , Feb. 23, 1998, at 33 (opining that Starr’s tactics were not outside the bounds of
common prosecutorial practice).
71. P OSNER, supra note 63, at 76.
72. Lewis, supra note 68.
73. Caught in the Web, NEWSWEEK , Aug. 31, 1998, at 34.
74. P OSNER, supra note 63, at 72.
75. Id.
76. Skolnik, supra note 66.
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tomorrow in a civil case and won, the losing party ordinarily would
be under no obligation to reimburse my expenses. This is why
corporations and institutions, such as universities, settle so many
lawsuits. In other words, it is often cheaper to pay the plaintiff than to
pay for your own lawyers. If I had the authority to make one change
in the American legal system, I would introduce the British rule of
cost shifting, despite the frequently made point that such a rule might
deter and starve a great many worthy suits.77 Yes, there is a price to
pay. European countries consider the “loser pays” rule a basic
requirement of justice and fairness. The poor are aided by legal
services to litigate their claims and by other protections.
To address a different problem set, I shall analyze the Racketeer
Influenced and Corrupt Organizations Act of 1970. 78 The issue is an
old one. A statute is enacted for a limited purpose, but its vagueness
permits innovative lawyers to push the limits of its application. It is
difficult to believe that various federal courts of appeals had to decide
that RICO claims cannot be brought against the federal government,79
and that the question of whether the Internal Revenue Service is a
racketeering enterprise cannot be answered because of sovereign
immunity.80
According to its statement of findings and purposes,81 RICO was
meant to provide more effective ways of fighting organized crime,
including requiring the payment of treble damages for private
attorneys general. 82 Instead, as Chief Justice Rehnquist states, “[m]ost
of the civil suits filed under the statute have nothing to do with
77. Kathleen Sullivan, Speech at The Commonwealth Club of California (June 9, 1999) in
The Good That Lawyers Do, T HE COMMONWEALTH (The Commonwealth Club of California,
San Francisco, Ca.), Aug. 23, 1999, at 2-5.
78. 18 U.S.C. §§ 1961-1968 (1994).
79. See McNeily v. United States, 6 F.3d 343 (5th Cir. 1993); Berger v. Pierce, 933 F.2d
393 (6th Cir. 1991), on remand 771 F. Supp. 865 (N.D. Ohio 1991) (on remand, the district
court was ordered to hold a hearing as to whether Rule 11 sanctions should be applied in a case
involving Section 1962(d) claims against the federal government), cited in T HE HON. JED S.
RAKOFF AND HOWARD W. GOLDSTEIN, RICO: CIVIL AND CRIMINAL LAW ANDSTRATEGY1-19
(1999).
80. See Chow v. Giordano, No. 93-56162, 1994 U.S. App. LEXIS 11048 (9th Cir. May
16, 1994), cited in RAKOFF & GOLDSTEIN, supra note 79, at 1-19.
81. Organized Crime Control Act of 1970, Pub. L. No. 91-452, 84 Stat. 922, 922-23
(1970).
82. 18 U.S.C. § 1964(c) (1994).
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organized crime. They are garden-variety civil fraud cases of the type
traditionally litigated in state courts.”83 I might add that the Supreme
Court has not exactly distinguished itself in reining in expansive
readings of RICO. The statute has been made applicable to mailing
fraudulent tax returns, to burglaries in two states by non-organized
crime defendants and even to claims against abortion protesters.84
RICO has given rise to yet another litigation racket.
However, my main concern is what the vagueness of the statute
says about our legal culture. A defendant violates RICO by
participating in the conduct of an enterprise through a pattern of
racketeering. 85 Any entity can be an “enterprise” for RICO purposes
and a “pattern” is fairly easily established by showing at least two
crimes or a conspiracy to commit at least two crimes.86 The most
disconcerting aspect of RICO is that the application of its special
conspiracy provision further attenuates the already loose common
law concept of conspiracy and stretches the concept to new extremes.
To be liable under RICO, the conspirator-to-racketeer does not need
to personally agree to commit a crime. Nor must he have contact with
or knowledge of other participants in the enterprise, or be able to
infer their existence by being dependent on their cooperation.
Incredibly, a defendant may be guilty of conspiracy to violate RICO
if the government can show, using even circumstantial evidence, that
he was sufficiently associated with the other crimes of the enterprise
to have implicitly “agreed” or consented to their commission. 87
83. William H. Rehnquist, Reforming Diversity Jurisdiction and Civil RICO, 21 ST.
MARY ’ S L.J. 5, 9 (1989) (originally presented at the Brookings Institution’s Eleventh Seminar
on the Administration of Justice, Apr. 7, 1989).
84. See Illinois Dep’t of Revenue v. Phillips, 771 F.2d 312, 317 (7th Cir. 1985) (holding
that the state tax agency may maintain a civil RICO action against a retailer who filed
fraudulent state sales tax returns); United States v. Aleman, 609 F.2d 298 (7th Cir. 1979)
(applying RICO to burglaries in two states by non-organized crime defendants); National Org.
for Women, Inc. v. Scheidler, 510 U.S. 249 (using RICO against abortion protesters); Northeast
Women’s Cent., Inc. v. McMonagle, 868 F.2d 1342, 1345 (3d Cir. 1989) (using RICO against
abortion protesters).
85. 18 U.S.C. § 1962(C) (1994).
86. 18 U.S.C. § 1961(4)-(5) (1994).
87. See, e.g., United States v. Neapolitan, 791 F.2d 489, 502 (7th Cir. 1986) (affirming
conviction of RICO conspiracy by using circumstantial evidence of defendants’ association
with the enterprise’s activities to establish agreement that other patterns of crime occur). See
also Jeremy M. Miller, RICO and Conspiracy Construction: The Mischief of the Economic
Model, 104 COM. L.J. 26, 31 (Spring, 1999). The author describes:
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Additionally, his liability extends to all the crimes of the enterprise.
If this is not “Alice in Wonderland,” what is?88 We call this the rule
of law? Is this what the war against organized crime justifies?
Furthermore, the forfeiture provisions of RICO are of a breathtaking
sweep: The convicted defendant is to forfeit his entire interest in any
business that is used in some way to facilitate the RICO offense.89
The ease with which public or private prosecutors may seize upon
the breadth of the statute is illustrated by the Justice Department’s
recent RICO suit against tobacco companies. The lawsuit exemplifies
litigation’s erosion of the rule of law in two respects. First, and more
mundanely, the federal government is applying RICO far outside the
context of organized crime in order to accomplish a prohibition that it
could not muster the political support to legislate. As Robert Bork
notes, at least when the nation decided to end the “scourge” of
alcohol, it duly ratified the Eighteenth Amendment.90
More striking, however, is the government’s breathtaking
hypocrisy in using a racketeering statute against the tobacco industry,
when the plaintiff itself could be described as a co-conspirator to the
harm done. The federal government has long known about the health
risks associated with smoking; nevertheless, it permitted the sale of
a real and felt concern that RICO’s “enterprise,” combined with conspiracy and the
RICO (statutory) construction clause . . . had diluted the time-honored, common-law
principles of actus reus and the limited breadth of inchoate offenses—that is, RICO’s
liberal construction and “conspiracy to form a criminal enterprise” had perilously
approached a full-fledged due process violation.
Id. See also Brian M. Molinari, Conspiracy Theory: The RICO Predicate Act Requirement for
Wrongful Discharge Cases Brought Under 18 U.S.C. 1962(d), 31 SUFFOLK U. L. REV. 481, 493
(1997) (“A conspiracy to commit the other RICO violations may occur absent the actual
commission of those violations or the racketeering activities that underpin them . . . [E]ither
racketeering activity or classic overt conspiracy acts may qualify as “predicate acts” to a RICO
violation that causes injury.”) (quoting Shearin v. E.F. Hutton Group, Inc., 885 F.2d 1162, 1169
(3d Cir. 1989)); G. Robert Blakey & Kevin P. Roddy, Reflections on Reves v. Ernst & Young:
Its Meaning and Impact on Substantive, Accessory, Aiding Abetting and Conspiracy Liability
Under RICO, 33 AM. CRIM. L. REV. 1345, 1447 (1996) (“Under the statute, it is irrelevant that
each defendant participated in the enterprise’s affairs through different, even unrelated crimes,
so long as we may reasonably infer that each crime was intended to further the enterprise’s
affairs.”) (quoting United States v. Elliot, 571 F.2d 880, 902-03 (5th Cir 1978)).
88. Memorandum from Robert Weisberg, Stanford Law Professor (on file with author).
89. 18 U.S.C. § 1963(a) (1988).
90. Robert H. Bork, Tobacco Suit is Latest Abuse of the Rule of Law, W ALL ST. J., Sept.
23, 1999, at A22.
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tobacco products and profited enormously from taxing such sales.
The ranks of the racketeers logically include the party who regulated
and taxed tobacco (or protected it, at the behest of Senators from
tobacco growing states). It requires extraordinary “chutzpah” to bring
a RICO suit while mindful of this history. Is this what the war against
tobacco justifies?
Let me end my illustrations by providing an example from the life
of a university president. In 1991, before I became president of
Stanford, Paul Biddle, the former campus representative for the
Office of Naval Research, filed a qui tam suit under the so-called
False Claims Act against the University that alleged overbilling of the
government.91 In December 1993, more than three and one-half years
after Biddle had made his first charges, the Justice Department
declined to enter the lawsuit brought by Biddle.
In October 1994, Stanford and the U.S. Government agreed to
settle all disputed matters related to the billing and payment of the
indirect costs of federally sponsored research at Stanford from 1981
through 1992. In settling this contractual dispute, the Office of Naval
Research, the responsible government agency, acknowledged that
"the Navy has concluded that it does not have a claim that Stanford
engaged in fraud, misrepresentation, or other wrongdoing with
respect to the Memoranda of Understanding, costs, submissions,
claims or other matters covered by the settlement agreement.”92
The settlement required Stanford to pay the government an
additional $1.2 million as an adjustment for the years 1981 through
1992 and to dismiss its appeals concerning 1991 and 1992. As a
normal business settlement, this was unremarkable. Over the course
of twelve years, Stanford had conducted research under nearly 18,000
federally sponsored contracts and grants involving hundreds of
millions of transactions and dollars. Adjustments when closing out
the books for open years are normal and expected under the
applicable government rules, and the amount of the adjustments for
the years settled were within the normal range.
91. GERHARD CASPER, STANFORD UNIVERSITY , CARES OF THE UNIVERSITY : FIVE-YEAR
REPORT TO THE BOARD OF T RUSTEES AND THE ACADEMIC COUNCIL OF STANFORDUNIVERSITY
37, 37-39 (1999), available at http://www.Stanford.edu/home/standford/cares.
92. Id.
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This case, however, was not normal. Not one sponsored research
dispute at any university, including Stanford, has ever received as
much attention and scrutiny as indirect costs at Stanford. As the
public controversy developed, the inquiry caused much pain, distress,
and expense. Between 1991 and 1994, Stanford spent twenty-seven
million dollars on accountants, auditors and consultants to address
issues raised by federal government auditors.93 This figure does not
include legal costs. All of these expenditures had to be paid for with
funds from unrestricted sources, of which the most important is
tuition. To the extent that Stanford made errors, such errors were
wholly regrettable. But the irresponsible accusations against Stanford
and University officials were also regrettable. To this day, I receive
letters from alumni who simply assume that the sensational headlines
they read told the truth and gave a fair picture.
In our overheated public life, a presumption of innocence is hardly
ever granted and, since New York Times v. Sullivan, there is no
protection against defamation of public actors except when false
statements are made with actual malice.94 The ease with which
accusations were made against the university, complex accounting
issues were irresponsibly oversimplified by the media, and vast costs
were imposed on the University is disheartening to a lawyer because
the story is in no way unique. It seems that many regulatory disputes
these days are prejudged by government officials and then tried in
legislative committees and the media. Audits are treated as if they
were criminal prosecutions.
The illustrations that I have offered are from different, but by no
means all, walks of life. I have not even scratched the surface. There
are much more basic issues. I said at the beginning that the concept of
the rule of law requires a basis in law for the exercise of public
authority. All too often that basis is far-fetched and tenuous. I remind
you how much regulation (such as the San Francisco example with
which I began) is based not on statutes passed by state or federal
legislatures, but rather on the so-called procurement powers of all
levels of government, from local to federal.
My examples are not exceptions, but rather symptomatic of a
93. Id.
94. 376 U.S. 254 (1964).
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larger problem. What I have described can and does happen to poor
people, middle-class people, politicians, businesses and institutions.
It goes without saying that I am not making the point that all
policemen, bureaucrats and prosecutors are on the wrong track. Many
try to do the decent thing under trying circumstances. They must cope
with a deeply flawed system that makes the thoughtful weighing of
costs and benefits the exception, rather than the rule. Let me turn to
some more general observations.
III
The many wars, for which law provides the weapons, are often
characterized by inconsistent and conflicting orders. In our system of
public administration and adjudication of public law issues, we suffer
from too many layers of government with concurrent jurisdiction.
Preemption is nonexistent in too many areas of law.95 Where just a
single level of government would busily produce a regulatory maze,
complex and internally inconsistent enough to employ legions of
handholding lawyers, we allow two, three, or four to have their say.
Not only do multiple government agencies have a say, but so do
innumerable citizens acting as private attorney generals, empowered
to bring private suits. Government decisionmaking is further distorted
when enforcement rights, over matters concerning the public interest,
are granted to private parties, such as in qui tam actions.96
More generally, lawyers for private parties employ private
litigation as a bulldozer for the implementation of ill-thought-through
bureaucratic policy preferences. For instance, EEOC concepts such as
the vague notion of a “hostile environment,” are increasingly
95. See, e.g., Pacific Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm’n,
461 U.S. 190, 191 (1983) (holding that “Congress has preserved the dual regulation of nuclearpowered electricity generation: the Fede ral Government maintains complete control of the
safety and “nuclear” aspects of energy generation . . . the States exercise their traditional
authority over . . . the need for additional generating capacity, the type of generating facilities to
be licensed, land use, ratemaking.”)
96. See Sean Hamer, Lincoln’s Law: Constitutional and Policy Issues Posed by the Qui
Tam Provisions of the False Claims Act, 6 KAN . J.L. & P UB. P OL ’ Y 89 (1997) (discussing
constitutional and policy arguments surrounding qui tam actions from the False Claims Act);
James T. Blanch, The Constitutionality of the False Claims Act’s Qui Tam Provision, 16 HARV.
J.L. & P UB. P OL ’ Y 701 (1993) (same); Evan Caminker, The Constitutionality of Qui Tam
Actions, 99 YALE L.J. 341 (discussing the constitutionality of qui tam actions in general).
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prominent in Title VII litigation. While this regulatory concept
undoubtedly has some legitimacy, its role as the decisive criterion in
discrimination cases and its inherent vagueness subject employers to
the real fear that almost anything could create a hostile work
environment. This “enlightened” concept leads to both chilling life
and engendering unpredictability—a bad combination.
The mixing of administrative and criminal law approaches leads
to legal overreach by blurring any distinction between auditing and
prosecuting. Furthermore, the excessive use of administratively
imposed sanctions, that are often very substantial, gives the
enforcement of administrative law a quasi-criminal character and
insulates low-level decision-makers from the oversight of their
hierarchical superiors. The bureaucrats’ tyranny persists because
higher-ups do not want to be seen as interfering with “enforcement
actions.”
Ironically, hierarchical control also breaks down for the opposite
reason—the politicization of public administration. Think of the
influence of congressional staffers, representing a powerful
committee chair, on mid-level executive branch activities. Much of
the time our government, where in Paine’s words, the law is king,
does not act by majority rule. Our system of checks and balances has
become so extreme and byzantine that political accountability is
difficult to obtain. The most important measure of a democracy is
whether you can “throw the rascals out.” In order to do that you need
to know who the rascals are, and we voters often have no clue.
Finally, the fact is that we have no efficient and cheap recourse for
those who suffer at the hands of public authority. Indeed, our judicial
process is neither timely nor affordable for most people. We have an
independent judiciary, but that judiciary feels little responsibility for
systemic excesses. During a recent three-month period, 10% of my
regular working hours were spent in depositions, preparation for
depositions and review of deposition transcripts for a single lawsuit
over tenure. All of the underlying events took place in 1988, four
years before I even arrived at Stanford. The case was in state court,
and California procedure allows depositions as a means for obtaining
evidence, which amounts to the contemporary equivalent of torture.
As I said, in Britain and on the European continent, cost shifting
to the losing party is considered a fundamental requirement of justice.
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The absence of cost shifting in the United States leaves many of us
with the unhappy choice between ruining ourselves in vindicating our
rights or paying off a plaintiff because spending inordinate amounts
of money on lawyers seems a poor use of resources, especially if the
resources are those of a philanthropic institution, such as a university.
Overall, legal costs are staggering, and the only explanation I can see
for why we have not yet broken down under them is the fact that we
are a prosperous country accustomed to so much waste.
IV
What do I really think? Since the eighteenth century we have seen
extraordinary growth in personal freedom, formal and substantive
equality, and societal and, in many instances, personal wealth. While
welfare systems have not succeeded in eliminating poverty, they at
least represent an acknowledgment of the obligation to moderate
poverty. Apart from poverty, stark differences between the haves and
the have-nots remain. Indeed, in the United States, such differences
are unfortunately on the increase. Yet, at least equality of
opportunity, not infrequently, is more than a mere aspiration.
When I say “personal freedom,” I, of course, mean political
freedom, as found in the protection given to the freedom of speech or
the enforcement of voting rights. However, I also refer to the freedom
to fashion your life, to choose the people with whom you want to
spend your life, and personal mobility. By comparison not only to
eighteenth century Prussia but also to eighteenth-century
Massachusetts or Virginia, no personal status limits the freedom to
develop one’s personality. The commodification of life seems to
favor much shallowness and disconnectedness, but questions
concerning the quality of life are rather complex and answers are too
easily marked by prejudice.
If there is so much to admire, why am I somber? I have suggested
some of the reasons through the illustrations and conclusions I
provided earlier. The question that constitutes my title poses the rule
of law and enlightened absolutism as alternatives. In reality, we have
them both, not as parallel phenomena, but as an unholy alliance
where the law becomes the often contradictory, creeping,
undisciplined, chaotic and definitely expensive means for the
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implementation of absolutist visions of the world.
Ideologies are not dead. All-embracing ones have, for the time
being, become a rarity. Ideological politics, however, are still very
much alive. In the legal system, they find their expression through the
ideological law firms of the left or right, mostly masquerading as
“foundations.” Edward Shils defined ideological politics as based on
the assumption “that politics should be conducted from the standpoint
of a coherent, comprehensive set of beliefs which must override
every other consideration.”97 If we omit the attributes “coherent” and
“comprehensive,” the definition can still serve to capture what in the
vernacular has come to be called “single-issue politics.” Frequently,
non-interest-group politics allow for political compromise and beliefdriven politics that override every other consideration. Unfortunately,
compromise is viewed as a compromise with evil and sin, and
therefore, is unacceptable.98
In the United States, the organizational skills of belief-driven
politics often result in politicians providing immediate satisfaction to
sectional ends 99 through the passing of mostly vague and ill-thought
through laws with complete disregard for the systemic consequences.
In some states, such as California, we have the added problem of an
increasingly populist electorate that has abandoned a basic
commitment to representative government and, instead, rules by
referenda. A multitude of causes with “zero tolerance” for this, that,
or something else, have captured law for their ends, not allowing for
discretion, common sense, balancing, proportionality or judgment.
“Enlightened absolutism” is not dead, it has simply become
pluralistic.
Though I do believe that my profession, the legal profession,
including the law schools, has been woefully unmindful of the
systemic consequences of what legislatures, administrations, courts
and lawyers are doing, and that a call for careful and thorough
reengineering of the legal system is overdue, it is also the case that
our political system has encouraged absolutism, including pluralistic
absolutism, to capture the law. Frederick II of Prussia may have
97. SHILS, supra note 1, at 25-26.
98. Id. at 52.
99. See id. at 51.
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believed that reason can prescribe virtue, however, in that respect, a
democratic pluralistic polity cannot be self-confident.
Let me conclude by quoting the same author with whom I began,
Edward Shils: “Above all, civil politics require an understanding of
the complexity of virtue, that no virtue stands alone, that every
virtuous act costs something in terms of other virtuous acts, that
virtues are intertwined with evils, and that no theoretical system of a
hierarchy of virtues is ever realizable in practice.”100 If our politics do
not become more modest, more responsible and more understanding
of the costs of virtuous policies in terms of other virtuous policies,
then our legal system will continue to grow more expensive, more
unruly and more despotic.
100. Id. at 52.
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